Ramsey v. Hawkins

• Citation: 82 So. 823,78 Fla. 189
• Parties: RAMSEY v. HAWKINS et al.
• Decision Date: 30 July 1919
• Court: Florida Supreme Court

82 So. 823

78 Fla. 189

RAMSEY v. HAWKINS et al.

Florida Supreme Court

July 30, 1919

Appeal from Circuit Court, Hillsborough County; F. M. Robles, Judge.

Suit by T. W. Ramsey against W. W. Hawkins, R. L. Goode and wife, the Dawson Trading Company, and the United States Trust & Savings Bank. Decree for complainant against defendant W. W. Hawkins and suit dismissed as to the other defendants, and plaintiff appeals. Decree reversed, with directions to render a final decree for plaintiff against defendants Hawkins and Goode and declaring the liens of the Dawson Trading Company and the United States Trust & Savings Bank subordinate to that of plaintiff, and ordering plaintiff's lien foreclosed unless decree was satisfied within the time fixed therein by the court.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

The purpose of the cautionary notice of lien, provided for in section 2211, Gen. St. 1906, is to advise the owner that material is being furnished the contractor, and the amount required to pay therefor, that the owner may protect himself by reserving a sufficient amount to pay for such material. It is a warning to the owner, advising him, as it were, to take heed.

If the cautionary notice is such as to put the owner upon his guard and protect himself against making payments to contractors while claims against them are outstanding in favor of subcontractors or materialmen, this will go a great way to sustain its sufficiency.

The word 'material,' when used in referring to materialmen's liens, has a well-defined and understood legal significance, and when thus used it is understood to be something that becomes a part of the finished structure.

A written notice to the owner as follows: 'Notice is hereby given you that I am furnishing material to -----, the contractor, to be used in the erection of your building situated upon the piece or parcel of land located in the county of Hillsborough, and in the state of Florida, and described as follows: * * * And a lien will be claimed by me upon the said building and the land upon which the same is situated, for the sum of $980, for the said material furnished by me for the construction of the said building'--the same being signed by the materialman and served upon the owner, is a sufficient cautionary notice under section 2211, General Statutes of Florida, to create the materialman's lien upon the property of such owner, as also to establish a personal liability of such owner for the amount due for such materials, not exceeding the amount then due under the original contract.

Mortgagees, filing and recording their mortgages while a building is in course of construction, and materials being furnished for the construction thereof, are under the statute creditors with notice of the liens held by materialmen who have no actual notice of the existence of such mortgages at the time of furnishing such materials.

COUNSEL E. B. Drumright, of Tampa, for appellant.

Hilton S. Hampton and W. T. Martin, both of Tampa, for appellees.

OPINION

CAMPBELL Circuit Judge.

The appellant, T. W. Ramsey, who was complainant in the court below, on September 8, 1916, filed his bill of complaint in the circuit court of Hillsborough county against the appellees herein, together with I. W. Philips Company, a corporation, and one William B. Cogswell, alleging in substance:

That the complainant was, at the time named in the bill of complaint, engaged in the business of furnishing lumber and building materials to be used in the construction of buildings in Hillsborough county, Fla., and elsewhere; that about April 24, 1916, W. W. Hawkins, who was then and there a contractor, with the respondent R. L. Goode, for the erection of a building situated upon lot 2 of block 4, Belvedere subdivision, according to map or plat of said subdivision of record in the office of the clerk of the circuit court of Hillsborough county, Fla., applied to the complainant for certain lumber and building materials to be used in the construction of the said building under the said contract, and that the complainant did furnish to said W. W. Hawkins, as said contractor, lumber and building materials to the value of $1,063.83, which lumber and building material was used by the said W. W. Hawkins in the construction of the said building; that the lumber and materials were fully furnished between the 6th day of May, 1916, and the 10th day of June, 1916; and that during the whole of the said time the said building was in actual course of construction, the said work having been begun on the 22d day of April, 1916.

That on the 24th day of April, 1916, the complainant executed and delivered to R. L. Goode, owner of the premises, a written cautionary notice of lien, the same having been actually served on April 25, 1916, at which time R. L. Goode was indebted to W. W. Hawkins, the contractor, under the aforesaid contract, in a sum greatly in excess of the amount due the complainant, as shown in the said cautionary notice, which is attached to the bill of the complaint as Exhibit A.

The bill of complaint further alleges that the materials furnished the said contractor after said cautionary notice to the owner amounted to $1,060.83, and that after allowing credits for material returned amounting to $126.48 there remained due and unpaid the sum of $934.35, the same having never been paid by either W. W. Hawkins, contractor, or R. L. Goode, the owner of the property. A statement is attached to the bill of complaint, showing the items of materials used and the amount charged therefor, bearing the indorsement of W. W. Hawkins that the same is correct, this statement being marked Exhibit B.

It is alleged, further, that on July 3, 1916, complainant made a notice of his lien in writing, which was filed for record on the same date; copy thereof being attached to the bill of complaint.

The bill alleges, further, that the Dawson Trading Company, a corporation, sold the lot described in the bill of complaint, and in the cautionary notice of lien, to R. L. Goode on the 6th day of March, 1916, and that on the 11th day of March, 1916, he made and executed a mortgage on the premises to the said Dawson Trading Company, a corporation, and that it was withheld from record until the 5th day of June, 1916, and that the complainant, at the time of furnishing the materials alleged to have been furnished, had no actual knowledge of the existence of such mortgage. It is also alleged in the said bill of complaint that on June 3, 1916, the respondents R. L. Goode and Inez Goode, his wife, made and executed a mortgage upon the said property in the sum of $1,750 to the respondent United States Trust & Savings Bank, a corporation, and that at the time of the giving of the said mortgage, and the acceptance thereof by the mortgagee, the said building was in process of construction, and that the said United States Trust & Savings Bank was charged with notice of the claims and rights of the complainant, and that the mortgage is subject to the lien of the complainant.

The complainant claims in his said bill a lien upon the lot and the building in the sum of $934.35 for the material furnished, and that an accounting be taken of the amount justly due complainant, including interest and attorney's fees, as provided under the laws of Florida, and that the same be declared to be superior to the claims or rights of any of the respondents named in the bill of complaint, and that the respondents W. W. Hawkins and R. L. Goode be decreed to pay the complainant the sum found to be due, and in default of the payment thereof that the premises be sold by the decree of the court at public auction, and from the proceeds of the sale the amount of the decree be satisfied.

No service of process was had upon the respondent William B. Cogswell.

On November 6, 1916, the respondent I. W. Philips Company, a corporation, filed a disclaimer of any title, right, or interest in connection with the premises in question.

Answers were filed by R. L. Goode and wife, Inez Goode, the United States Trust & Savings Bank, and the Dawson Trading Company, a corporation, denying the material allegations of the bill of complaint in so far as they affected the said respective respondents.

Replication was duly filed, and testimony was taken and reported by special master, who had been appointed by the court.

On December 10, 1917, the court rendered its decree and found the following:

'(1) That the complainant T. W. Ramsey, actually furnished lumber and building material used in said premises to the respondent R. L. Goode belonging, and to the amount claimed in the bill of complaint, viz. $934.35, none of which has been paid.

'(2) The court further finds that the building upon said premises was actually constructed by W. W. Hawkins, respondent herein, under contract with the respondent R. L. Goode; and the court further finds that the respondent R. L. Goode has never paid that portion of his contract with the said W. W. Hawkins, amounting to the sum due to the complainant herein either to the said respondent, W. W. Hawkins, or any other parties, but in fact has never paid the same.

'(3) The court further finds that the notice of the complainant to the said respondent R. L. Goode was actually served upon him on the 25th day of April, 1916, at which time he was indebted to the contractor, W. W. Hawkins, in a sum more than that claimed in said notice.

'(4) The court further finds that the respondent W. W. Hawkins is indebted to the complainant for furnishing materials as heretofore set forth in the amount of $934.35.

'(5) The court further finds that, at the time of the filing and recording of the mortgages of both of the respondents the

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